GURCHARAN SINGH Vs. DES RAJ

JUDGEMENT

(1.) THE appellant filed a suit for declaration and injunction claiming that he was owner of the suit property. On 4.1.1982, case was adjourned for filing replication to 9.2.1982 subject to payment of Rs. 10/- as costs. On subsequent date, neither the appellant nor his counsel appeared and the costs were also not tendered. Case was adjourned to 19.2.1992 when the trial court dismissed the suit under Section 35-B of the Code of Civil Procedure. The appellant preferred an appeal which was held to be not maintainable. The lower appellate court held that since no appeal was provided against an order passed under Section 35-B of the Code of Civil Procedure, dismissing the suit on the ground of non-payment of costs, appeal was not maintainable. Hence, this second appeal.

(2.) EVEN though none appears for the appellant, I have perused the impugned judgments of the courts below. I will assume that the order dismissing the suit for default in payment of costs is not decree and appeal against the same was not maintainable. In view of prayer of the appellant in para 7(c) of the grounds of appeal, this petition is treated as revision.

(3.) FOR the above reasons, this appeal petition is allowed. The impugned order dismissing the suit for non-payment of costs is set aside. The matter is remanded to the trial court for fresh decision in accordance with law. Appeal allowed.